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Monday, April 18, 2011

Supreme Court Set to Hear Oral Arguments in Global Warming Case

The Supreme Court will hear oral arguments tomorrow in American Electric Power v. Connecticut. At stake is the ability of citizens to stop corporate polluters from emitting harmful greenhouse gases. The Court must decide whether states and private parties can sue utility companies to cap global warming emissions. Eight states (now six after the Republican governors of New Jersey and Wisconsin withdrew), the City of New York, and three private land trusts allege that greenhouse gas emissions that cause global warming constitute a public nuisance for which polluters should be liable under common law. The defendant utility companies – American Electric Power, Cinergy, Southern Company, Xcel Energy and the Tennessee Valley Authority – are the five largest emitters of carbon dioxide pollution in the United States. The defendants’ combined 650 million tons of annual carbon dioxide pollution constitutes 10 percent of America’s carbon dioxide emissions. The Second Circuit denied a motion to dismiss, allowing the case to move forward. Justice Sonia Sotomayor was on the three-judge panel that initially heard the case but was elevated to the Supreme Court prior to the decision and is recusing herself from the case.

The defendants appeal to the Supreme Court argues that plaintiffs cannot show that global warming is traceable to these defendants, or that it would be alleviated if a court orders them to reduce their carbon emissions; that because the Clean Air Act grants the Environmental Protection Agency (EPA) the authority to regulate carbon emissions, there is no room for a federal common law claim; and that a court is not equipped to evaluate whether defendants emissions are unreasonable.

Most of these arguments are easily rebuttable. For example, it's hard to see how contributors of 10 percent of America's annual emissions of greenhouse gases should not be potentially liable even if there are millions of other contributing sources. Speeders don't get to escape a ticket just because others are driving too fast on the nation's roads. Given the fact these defendants are the five largest carbon dioxide emitters in the United States, a reduction in their greenhouse gas emissions should have some benefit even if it won't solve the overall problem.

The EPA is also hardly covering the field. Although the EPA is currently drafting regulations to regulate greenhouse gases, it took a lawsuit by states—Massachusetts v. EPA—to establish that EPA had this authority. Under the Bush administration, EPA took the position that it had no authority to regulate greenhouse gases. Moreover, the regulations EPA is drafting will not directly affect the defendants’ power plants. EPA's rules will govern mobile sources, like cars and trucks. They will only affect stationary power plants if those plants are new or become modified.

As for whether courts can fashion a remedy to curb the unreasonableness of defendants' emissions, this is something they have done in public nuisance cases as far back as pre-Revolutionary times. The plaintiffs explain that public nuisance claims have been adjudicated in the Anglo-American judicial system since the 14th century. The Supreme Court “has long adjudicated common-law public-nuisance claims brought by States seeking to enjoin air or water pollution that crosses state boundaries, sometimes based on new scientific knowledge about the harm caused by a particular type of pollution.” Thus, once a public nuisance violation has been established, courts have historically been able to craft a remedy. In this case it would not be to solve global warming; it would be to address these defendants level of carbon emissions.

Corporate polluters, including Chevron, Shell Oil, ConocoPhillips, the National Mining Association, and a host of others have filed amicus briefs in support of the defendants. In addition, conservative foundations that have received millions of dollars from Charles and David Koch for climate change denial activities have filed amicus briefs on behalf of the polluters. These include the Cato Institute, which was co-founded by Charles Koch and has received more than $13.6 million from the Koch brothers, and the Washington Legal Foundation, which has received $1.2 million from the Koch brothers.

In an ironic twist, several Republican members of Congress who otherwise have sought to kill global warming regulations and the EPA filed a brief arguing that the Court should block the lawsuit as preempted by EPA's statutory authority to regulate greenhouse gases. One of the brief's signers, Senator James Inhofe, has called global warming “the greatest hoax ever perpetuated on the American people.” Republicans in the House have used budget debates to attempt to prevent the EPA from regulating greenhouse gas emissions and reduce its funding by one-third, more than any other agency.

If the Supreme Court sides with polluters, it will prevent citizens from holding corporations responsible for their contributions to global warming.

Click here for a New York Times editorial urging the Supreme Court to allow the lawsuit to go forward.